A 9/11 Judge Sets a Month as Time Limit for a Trial

Judge Alvin K. Hellerstein of Federal District Court, center, will oversee the only case stemming from the 9/11 attacks to go to trial.Credit
Michael Appleton for The New York Times

For almost nine years, the family of Mark Bavis, a passenger on the second plane to hit the World Trade Center on Sept. 11, 2001, has been waiting for a trial in a wrongful-death lawsuit it filed against United Airlines and other defendants.

The family, determined to prove what it believes was negligence, has resisted attempts to settle. Theirs is the last wrongful-death action still pending of more than 90 filed after the attacks. Thousands of other families avoided court and received payments through a victims’ compensation fund.

But now, after this seemingly endless run-up, with a trial scheduled for later this year, the judge, Alvin K. Hellerstein of Federal District Court in Manhattan, has set a time limit. In a highly unusual move, Judge Hellerstein will restrict each side to the same number of hours — in one estimate, 50 to 60 — to present its case, and time the trial like a speed chess match.

“The time is going to be expressed not in days, but in minutes,” Judge Hellerstein has said in court. Each side’s clock will start ticking whenever its lawyer rises to question or cross-examine a witness, or to argue before the jury — “everything the party wishes to do from openings through summations,” he said.

The judge has made it clear that he is seeking to avoid the kind of trial that rolls on interminably as the details, minutiae and technical arguments pile up, and wants to keep the jury focused and interested. “You know that once the jury gets bored with your presentation,” he has told the parties, “you’ve lost significant power of persuasion.”

But his approach has prompted grumbling among the lawyers on both sides in a case where, despite the passage of time, emotions remain raw.

Donald A. Migliori, a lawyer for the Bavises, said limiting the trial to one month and dividing the time equally — he made the 50- to 60-hour estimate — was ambitious for a case of such magnitude, particularly for his client, the plaintiff, who bears the burden of proof. The lawsuit contends that the hijackers were able to board United Airlines Flight 175 in Boston because of negligence by United and other defendants, which include an airport security firm.

“The person that is affected the most is my client,” Mr. Migliori said. “We’re talking about millions of pages of documents. We’re talking about distilling one of the most important stories in American history.”

A lawyer for United, meanwhile, complained in a letter that splitting the trial’s time 50-50 between the plaintiff and the defendants “would be unfair” because separate defendants may make different arguments.

The lawyer, Michael R. Feagley, proposed that the judge allocate 60 percent of the trial’s time to the defendants, which he said would still leave the Bavis family “far more time than any single defendant.”

The judge, who declined to discuss his plan, has a reputation as a skilled jurist. He has overseen the litigation that followed the 9/11 attacks, including the resolution of thousands of health claims, and the other wrongful-death suits.

In a hearing in February, he refused to alter his formula. “At the end of the day,” he said, a 50-50 split was as good “an approximation of justice as I could figure.”

Photo

Mark Bavis was on the United Airlines plane that hit the World Trade Center. His twin brother, Mike, and their mother, Mary, at a Sept. 11 memorial in Boston last fall, are suing the airline.Credit
Erik Jacobs for The New York Times

The timing of all aspects of a trial is rare.

“I’m sure if I shared this with my friends who are litigators, they’d be horrified,” said Stephen L. Carter, the Yale law professor.

Professor Carter said the judge’s idea sounded logical and might speed the pace of a trial. But, he said, he could imagine a situation in which one party’s burden was much greater than the other’s. “The judge would have to take care to ensure that what looks like equal time is actually not unfair to one side,” he said.

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Mr. Migliori, the family’s lawyer, said he anticipated hard decisions during the trial. “You may have to say, ‘I’ve got to drop this middle witness because I only have seven trial hours left.’ ” But he said his legal team was prepared to meet the time challenges. The United lawyer, Mr. Feagley, would not comment.

Judge Hellerstein has said he once used the technique in a patent case. It was also used in the libel suit by Gen. William C. Westmoreland against CBS in the 1980s. In that case, Judge Pierre N. Leval, then of Federal District Court, gave each side 150 hours to present evidence, and two hours each for arguments in trial to the jury. “He had the stopwatch in his hand,” David M. Dorsen, a Westmoreland lawyer, recalled. “You could see him click it.”

The case was ultimately resolved after about four months before it went to the jury. David Boies, the CBS lawyer, who has since been involved in a few other timed trials, said the technique tended to “force the lawyers to focus on what’s important.”

Judge Leval, now an appellate judge, recalled that he set the time limits because of the huge number of potential witnesses in such an emotional case. “I feared that this might be a trial that would go on forever,” he said.

In a 2004 trial over a city demolition, the imposition of time limits became an unsuccessful ground for appeal.

The judge, Lewis A. Kaplan, had given both parties 11 hours to present their cases. He later gave each side three more.

But when the plaintiff’s lawyer, Barry S. Gedan, with 47 minutes left, asked for more time so he could present a deposition and still have 30 minutes for a summation, Judge Kaplan said, “The answer is you have 47 minutes to use however you wish.”

Fourteen minutes into Mr. Gedan’s reading of the deposition to the jury, the judge reminded him of how much time he had used. That meant he had only three minutes left — if he still wanted a 30-minute summation.

“Judge, this is killing me,” Mr. Gedan replied. “I am going to have a heart attack trying to read that fast.”

Mr. Gedan’s client, who had sought $3.1 million, was awarded only nominal damages. On appeal, Mr. Gedan cited, among other issues, “the disastrous impact” of the time limits.

“Arbitrary time limits yield arbitrary justice,” he said recently. “Courtroom clocks should not supplant the right to a fair trial.”

The case was affirmed on appeal, including the judge’s use of time limits.

A version of this article appears in print on April 28, 2011, on Page A1 of the New York edition with the headline: Judge Hearing A Last 9/11 Suit Has Set Timer. Order Reprints|Today's Paper|Subscribe